Morais Leitão, Galvão Teles, Soares da Silva e Associados, Sociedade de Advogados, RL
Excerpt:
The New Portuguese Insurance Contract Framework, published in April 2008 and in force as from 1 January 2009, definitely represents an important progress towards legal certainty in what concerns the basic rules governing insurance contracts. The new statute not only summons all the basic principles common to all kinds of insurance, ruling, clarifying and detailing some key issues, but also provides for all new rules with respect to some new forms of insurance contracts, some of which were already being used by insurance market players.
16 April 2008 saw the publication of a statute setting out the general framework of insurance contracts (Decree-Law 72/2008, of April 16th). The Portuguese version of this statute may be found here. This statute constitutes a significant innovation in Portugal, as it summons, for the first time in close to two centuries, all the rules applicable to insurance contracts in general and moreover some provisions applicable to particular classes of insurance contracts. The new framework will come into force on 1 January 2009.
This statute was long overdue; within the industry it was felt that the previous regulation needed to be updated and consolidated; a further factor was a widely shared perception that the regulation should be more user-friendly for consumers. Previously, insurance contracts were governed by a fragmentary legal framework dispersed throughout a variety of both long-standing and recent statutes (as, for instance, the Commercial Code of 1888, Decree of 21 October 1907, Law 2/71 of April 12th, Decree-Law 176/95, of July 26th on the transparency requirements for insurance companies and insurance contracts, Decree-Law no.94-B/98, of April 17th, on the taking up of insurance business, Decree-Law 142/2000, of July 15th,on the payment of insurance premiums). As a result, there were inconsistencies within the framework and a number of relevant issues were either overlooked or only partially addressed.
Main Principles and Features: In many ways, the new provisions do not substantially differ from the framework that is still in force. However, the legislator followed the innovative tendencies of recent legislation in other countries, and focused, on the one hand, on the protection of the weakest party and, on the other hand, on the recent multiplication of new forms of insurance contracts as well as of new purposes for old forms of insurance contracts (as, for example, group insurance, in articles 76 to 90, or co-insurance, in articles 62 to 71).